Anti Graft and Corrupt Anti Graft and Corrupt Practices ActPractices Act

Marc Angelo V. Bantug Marc Angelo V. Bantug

James Seimon V. AbrenicaJames Seimon V. Abrenica

Section 3(d)Section 3(d)

(d) Accepting or having (d) Accepting or having any member any member of his familyof his family accept employment in accept employment in

a a private enterprise which has private enterprise which has pending official businesspending official business with him with him

during the pendencyduring the pendency thereof or thereof or within one year after its within one year after its

terminationtermination..

Elements of Section 3(d)Elements of Section 3(d)

1)1) The public official or his family The public official or his family member accepts employment member accepts employment

2)2) Must be in a Must be in a privateprivate enterprise enterprise3)3) The said enterprise must have The said enterprise must have

pending official businesspending official business with with him:him:

a)a) During the During the pendencypendency of his official of his official business with him.business with him.

b)b) Within one yearWithin one year after its termination after its termination

ApplicabilityApplicability

Section 3(d) applies if a public official Section 3(d) applies if a public official occupies an office that regulates, occupies an office that regulates, supervises or licenses the private supervises or licenses the private enterprise.enterprise.

Therefore, if he holds a public office Therefore, if he holds a public office which is not connected with the said which is not connected with the said private enterprise, the prohibition in private enterprise, the prohibition in Section 3(d) does not apply. Section 3(d) does not apply.

The evil sought to be avoided; The evil sought to be avoided;

Section 3(d) of RA 3019 was enacted Section 3(d) of RA 3019 was enacted to avoid a situation where a public to avoid a situation where a public official gives undue favor, preference official gives undue favor, preference or advantage to a private enterprise or advantage to a private enterprise as a consideration for present or as a consideration for present or future employment for the official future employment for the official himself or a family member. himself or a family member.

Nature of the act punishedNature of the act punished

A public official may violate Section A public official may violate Section 3(d) of RA 3019 in two ways:3(d) of RA 3019 in two ways:

1) The public official himself accepted 1) The public official himself accepted employment in a private enterprise which employment in a private enterprise which has pending official business with his officehas pending official business with his office

2) The public official caused his family 2) The public official caused his family member to accept such employment member to accept such employment

The need to prove pending official The need to prove pending official businessbusiness

If the private enterprise regularly If the private enterprise regularly deals or transacts with the public deals or transacts with the public official, it suffices to prove that his or official, it suffices to prove that his or his family member’s employment his family member’s employment with that private enterprise takes with that private enterprise takes place place at anytimeat anytime while any of its while any of its official business with him is pending official business with him is pending or within one year after the last or within one year after the last official business is finished.official business is finished.

Meaning of the term “family”Meaning of the term “family”

““Family relation is defined under Family relation is defined under Section 4 of RA 3019 which Section 4 of RA 3019 which according to said section; “shall according to said section; “shall include spouse or relatives by include spouse or relatives by consanguinity or affinity in the consanguinity or affinity in the third civil degree.” third civil degree.” (Valera vs. Sandiganbayan; G.R. No. (Valera vs. Sandiganbayan; G.R. No. 167278, February 27, 2008)167278, February 27, 2008)

Cases Cases

Valera vs. Sandiganbayan; G.R. No. Valera vs. Sandiganbayan; G.R. No. 167278, February 27, 2008167278, February 27, 2008

Section 3(e)Section 3(e)

(e) (e) Causing any Causing any undue injuryundue injury to any partyto any party, , including the Government, or giving any private including the Government, or giving any private party any party any unwarranted benefitsunwarranted benefits, , advantage advantage

or preference in the discharge of his official or preference in the discharge of his official administrative or judicial functionsadministrative or judicial functions through through

manifest manifest partiality, evident bad faith or partiality, evident bad faith or gross inexcusable negligencegross inexcusable negligence. This provision . This provision

shall apply to officers and employees of offices or shall apply to officers and employees of offices or government corporations charged with the government corporations charged with the grant grant of licenses or permits or other concessionsof licenses or permits or other concessions

Nature of the act punishedNature of the act punished

• There are two ways by which a public There are two ways by which a public official violates Section 3(e) RA 3019 in the official violates Section 3(e) RA 3019 in the performance of his functions namely:performance of his functions namely:• By causing undue injury to any party, including By causing undue injury to any party, including

the governmentthe government• By giving any private party any unwarranted By giving any private party any unwarranted

benefits, advantage or preference.benefits, advantage or preference.

(The Accused may be charged under either (The Accused may be charged under either mode or under both.)mode or under both.)

Elements of Section 3(e)Elements of Section 3(e)

1)1) The accused must be a public officer The accused must be a public officer discharging administrative, judicial or discharging administrative, judicial or official functions.official functions.

2)2) He must have acted with manifest He must have acted with manifest partiality, evident bad faith or gross partiality, evident bad faith or gross inexcusable negligence.inexcusable negligence.

3)3) That his action caused any undue injury That his action caused any undue injury to any private party unwarranted to any private party unwarranted benefits, advantage or preference in the benefits, advantage or preference in the discharge of his functions. discharge of his functions.

ApplicabilityApplicability

• The provision shall apply to officers and The provision shall apply to officers and employees of offices or government employees of offices or government

corporations charged with the corporations charged with the grant of grant of licenses or permits or other licenses or permits or other

concessionsconcessions

PartialityPartiality

Is synonymous with “bias” which Is synonymous with “bias” which “excites a disposition to see and “excites a disposition to see and report matters as they wished for report matters as they wished for rather than as they are.”rather than as they are.”

Bad faith Bad faith

Does not simply connote bad Does not simply connote bad judgment or negligence ; judgment or negligence ;

It imputes a dishonest purpose or It imputes a dishonest purpose or some moral obliquity and conscious some moral obliquity and conscious doing of a wrong; doing of a wrong;

A breach of sworn duty through some A breach of sworn duty through some motive or intent or ill will; motive or intent or ill will;

it partakes of the nature of fraudit partakes of the nature of fraud

Bad FaithBad Faith

Bad faith alone on the part of the Bad faith alone on the part of the petitioner is not sufficient to make petitioner is not sufficient to make her liable for violation of Section 3(e) her liable for violation of Section 3(e) of RA 3019. Such Bad faith must be of RA 3019. Such Bad faith must be evident.evident.

Gross Negligence Gross Negligence

Negligence characterized by the want of Negligence characterized by the want of even slight care, acting or omitting to act even slight care, acting or omitting to act in a situation where there is a duty to act, in a situation where there is a duty to act, not inadvertently but willfully and not inadvertently but willfully and intentionally with a conscious indifference intentionally with a conscious indifference to consequences in so far as other persons to consequences in so far as other persons may be affectedmay be affected

It is the omission of that care which even It is the omission of that care which even inattentive and thoughtless men never fail inattentive and thoughtless men never fail to Take on their own property. to Take on their own property.

Undue InjuryUndue Injury Undue injury refers to the actual or real Undue injury refers to the actual or real

damage occasioned by the acts of the damage occasioned by the acts of the offender.offender.

Thus, there was no injury for the purposes Thus, there was no injury for the purposes of criminal liability for the following:of criminal liability for the following:– Injury must be more than necessary, Injury must be more than necessary,

excessive, improper or illegal.excessive, improper or illegal.– Injury must be duly established as an element Injury must be duly established as an element

of the crime.of the crime.– There is no injury in a contract where sufficient There is no injury in a contract where sufficient

consideration exists in favor of the consideration exists in favor of the government.government.

ParticularityParticularity

Manifest partiality, evident bad faith Manifest partiality, evident bad faith or gross inexcusable negligence or gross inexcusable negligence must be alleged with particularity in must be alleged with particularity in the information sufficiently. the information sufficiently.

To sufficiently inform the accused of To sufficiently inform the accused of the charge against him and to enable the charge against him and to enable the court properly render a decision.the court properly render a decision.

CASES:CASES:

Cresente y Llorente, JR. vs. Cresente y Llorente, JR. vs. Sandiganbayan and Leticia Fuertes Sandiganbayan and Leticia Fuertes (92 SCAD 418)(92 SCAD 418)

Meneses vs. People of the PhilippinesMeneses vs. People of the Philippines

(303 SCRA 303)(303 SCRA 303)